advocatemmmohan

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, May 10, 2014

Complaint - Section 195(1)(b)(i) and Section 195(1)(b)(iii) of the Code of Criminal Procedure and sought punishment of the accused persons under Section 120-B of the Indian Penal Code (IPC) read with Sections 193/196/420 thereof and independently under Section 193 of the IPC.- Creating a Fake Judgment and order and getting benefits under the same - When challenged by interested persons before Apex court - Fraud played by accused came to light - Apex court order for CBI enquiry - in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court - court issued summons to the accused - one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction - Magistrate court dismissed the same - High court allowed the appeal - Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised = Central Bureau of Investigation , Lucknow, U.P. …..Appellant Versus Indra Bhushan Singh & Ors. …Respondents = 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500

Complaint - Section 195(1)(b)(i) and Section 195(1)(b)(iii) of the Code of Criminal Procedure and sought punishment of the accused persons under Section 120-B of the Indian Penal Code (IPC) read with Sections 193/196/420 thereof and independently under Section 193 of the IPC.- Creating a Fake Judgment and order and getting benefits under the same - When challenged by interested persons before Apex court - Fraud played by accused came to light - Apex court order for CBI enquiry - in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court - court issued summons to the accused - one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction - Magistrate court dismissed the same - High court allowed the appeal - Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised=2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500RANJANA PRAKASH DESAI, MADAN B. LOKUR
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 876 OF 2002

Central Bureau of Investigation , Lucknow, U.P. …..Appellant

Versus

Indra Bhushan Singh & Ors.
…Respondents

With

CRIMINAL APPEAL NO.877 OF 2002

J U D G M E N T

Madan B. Lokur, J.

1. The three questions before us are: (i) whether the complaint filedagainst the respondents under Section 195(1)(b) of the Code of CriminalProcedure, 1973 was authorized by the Allahabad High Court; (ii) whether itwas necessary to obtain a sanction from the Allahabad High Court for filingthe complaint against the respondents, and (iii) if a sanction wasnecessary, whether it was in -fact obtained. In our opinion, the firstquestion must be answered in the negative. Consequently, the second andthird questions do not arise or are, at best, academic in nature and neednot be answered. As such, the orders under appeal call for no interference.

The facts
2. On 25th May, 1990 a learned Single Judge of the Allahabad HighCourt is said to have dealt with Writ Petition No. 5267 of 1990(purportedly filed by Dr. Sheetal Nandwani) and passed an order to theeffect that the competitive examinations scheduled to be held on 27th May,1990 for admission in post-graduate medical courses in State medicalcolleges ought not to be held. Instead, admissions should be made on thebasis of marks obtained by the candidates in the MBBS course as has beendone in MDS courses. With this brief order the writ petition was allowed.
3. In compliance with the order dated 25th May, 1990 the StateGovernment cancelled the scheduled competitive examinations in sevenmedical colleges in Uttar Pradesh and a direction issued to grant admissionon the basis of MBBS results.
4. For reasons that are not relevant, the medical college in Meerutwas not informed of the cancellation. Therefore, Dr. Rahul -Verma, likeseveral others, participated in the examination held on 27th May, 1990.However, unlike others he filed Writ Petition No. 5548 of 1990 in theLucknow Bench of the Allahabad High Court in which he sought and wasgranted, on 4th June, 1990 the same relief as Dr. Sheetal Nandwani on thebasis of the order dated 25th May, 1990.He was represented in the case byhis lawyer Indra Bhushan Singh.Dr. Rahul Verma is one of the respondentsin Criminal Appeal No.877 of 2002 while Indra Bhushan Singh is therespondent in Criminal Appeal No.876 of 2002.
5. The order dated 25th May, 1990 was challenged in this Court andthe result of the petition is reported as U.P. Junior Doctors’ ActionCommittee v. Dr. B. Sheetal Nandwani and Others.[1]6. This Court found that no writ petition bearing no. 5267 of 1990was filed by Dr. Sheetal Nandwani and obviously therefore no order waspassed on 25th May, 1990 in the said case. It was found that the entireproceedings were fabricated and fake and this Court was satisfied thatthere was deep rooted conspiracy which resulted in the purported orderdated 25th May, 1990. Consequently, this Court passed appropriate orders inthe case and also directed that -the entire matter be investigated by theCBI which was required to identify the persons behind the deep rooted fraudand bring them to book without any delay. It was observed that the purityof the judicial stream should not be permitted to be polluted by aclandestine move such as the one that was the subject matter of discussionand citizens should not be misled by the actions of conspirators.
7. Pursuant to the directions given by this Court to investigate theconspiracy, the CBI searched the premises of Dr. Rahul Verma and found acopy of the order dated 25th May, 1990. The CBI also carried outinvestigations with regard to the role of Indra Bhushan Singh and others.
We were informed by the learned Additional Solicitor General that the
persons responsible for the fraud leading to the order dated 25th May, 1990
have not yet been identified although about 24 years have gone by.
8. Be that as it may, on 26th August, 1991 a complaint was filed byShri H.D. Kandpal, Deputy Registrar (Administration), Lucknow Bench of theAllahabad High Court in the Court of the Special Judicial Magistrate (CBI)in Lucknow against Dr. Rahul Verma and Indra Bhushan Singh. The complaintwas filed under the provisions -of Section 195(1)(b)(i) and Section195(1)(b)(iii) of the Code of Criminal Procedure and sought punishment ofthe accused persons under Section 120-B of the Indian Penal Code (IPC) readwith Sections 193/196/420 thereof and independently under Section 193 ofthe IPC.
9. The complaint gives the background facts leading to its filing and
goes on to state, inter alia, that after he had filed the writ petition,but before it was presented to the court, Dr. Rahul Verma substituted fourpages in the writ petition as filed. In these pages, a reference is madeto the purported order dated 25th May, 1990 and two of the pages weresigned by Indra Bhushan Singh. During the hearing of the writ petition on4th June, 1990 a photocopy of the purported order dated 25th May, 1990 wasfiled in court by Indra Bhushan Singh. On the basis of this writ petitionwith the interpolated or substituted pages and the purported order dated25th May, 1990 filed during the course of hearing, a learned Single Judgeof the Allahabad High Court, Lucknow Bench passed orders on 4th June, 1990directing the State Government to act in accordance with the purportedorder dated 25th May, 1990. The complaint states, however, that thesignature of Dr. Rahul Verma -on the vakalatnama filed along with the writpetition could not be confirmed. In the complaint, it was prayed thatcognizance of offences committed by Dr. Rahul Verma and Indra Bhushan Singhunder Section 120-B read with Sections 193, 196, and 420 of the IPC andSection 193 of the IPC be taken and the accused persons, that is, Dr. RahulVerma and Indra Bhushan Singh be summoned to face trial for the offencessaid to have been committed by them.
10. The complaint, as originally filed on 26th August, 1991 did notmention that H.D. Kandpal had the authority to file it on behalf of theAllahabad High Court. But a paragraph was subsequently inserted in thecomplaint to the effect that H.D. Kandpal had the authority to file thecomplaint on behalf of the Lucknow Bench of the Allahabad High Court.
11. Be that as it may, the Magistrate took cognizance of the complaintand issued summons to Dr. Rahul Verma and Indra Bhushan Singh.12. At this stage, it is worth mentioning that pursuant to the orderspassed by this Court in the case filed by the U.P. Junior Doctors ActionCommittee, the CBI submitted to this Court a “Self Contained Note” dated27th August, 1991 under cover of a letter -dated 28th August, 1991 in whichit was stated, inter alia, that “A statutory complaint under provisions ofSection 195(1)(b) of Cr. P. C. is being obtained from competent authority(sic) of Allahabad High Court for prosecuting Dr. Rahul Verma and I.B.Singh Advocate.” In other words, Kandpal had no authority to file thecomplaint on 26th August, 1991 as claimed by him since on 28th August, 1991the necessary sanction was “being obtained”. It is on this basis thatlearned counsel for the accused persons submitted that a paragraph to theeffect that Kandpal was authorized to file the complaint was inserted inthe complaint subsequently and illegally.
13. Subsequent to the Magistrate taking cognizance of the complaint,Indra Bhushan Singh moved an application for being discharged from theprosecution of the case. Apart from contesting the matter on its merits,in the sense that no case was made out for proceeding with the complaint,one of the grounds taken by him was to the effect that the complaint wasfiled without due authorization.By an order dated 2nd April, 1999 theMagistrate rejected the application on merits, but did not advert to theissue regarding authorization (in favour of Kandpal) to file the complaint.
-This led Indra Bhushan Singh to file Criminal Case No.1875 of 1999 in theAllahabad High Court and that was allowed by the order under appeal dated4th February, 2000.
Decision of the High Court
14. In the High Court, three submissions were advanced on behalf ofIndra Bhushan Singh. It was contended, firstly, that before filing acomplaint, the High Court ought to have conducted an inquiry as mandated bySection 340 of the Code of Criminal Procedure. The High Court, in the orderunder appeal, decided this issue in his favour and held that an inquiryought to have been conducted before the complaint was filed. We express noopinion on this issue and leave it open for adjudication in an appropriatecase. Secondly, it was argued that the Allahabad High Court had notauthorized Kandpal to file the complaint. In this regard, it was held: “A perusal of the original complaint itself shows that the complaint was once type then again at internal page 7 a fresh para was added at the bottom with fresh typewriter with fresh ribbon that the complainant is authorized to file this complaint on behalf of the Hon’ble High Court, Lucknow Bench, Lucknow. On this typing initial has been made by Sri Kandpal. Apparently, the complaint shows that Sri Kandpal has got some authority on behalf of High Court. The petitioner alleged that there was absolutely no such authority. On 9.6.1999also, the petitioner had argued that there was no order of the High court to file the complaint against Indra Bhushan Singh and the - present argument was also advanced that there is no such order in writing on record to show any such authority. In the Lower Court also this point was raised that there is no order of the High Court authorizing Sri Kandpal for filing such a complaint against Indra Bhushan Singh. The prosecution was granted several dates but record was not produced. Such a plea was also taken in the application for discharge dated 9.12.1995 in para 15. The entire record of the High Court was summoned and both the counsels for the parties, namely, Sri Amarendra Nath Singh and Sri D.R. Azad went through the entire records to search out whether Sri Kandpal has been authorized to file complaint. Sri Azad searched out the entire records of the case but could not find any such direction of the Court passed by the High Court authorizing Sri Kandpal to file the complaint. Thus, the complaint filed by Sri Kandpal is without any authority and is to be quashed merely on this ground.”

Thirdly, it was contended on the merits of the allegations made, that therewas no case for proceeding against Indra Bhushan Singh. The High Courtdecided this issue also in favour of Indra Bhushan Singh. In our opinion,it is not necessary to go into the merits of the case since it is quiteclear that the complaint deserves to be quashed on the sole ground thatKandpal was not authorized to file it.
15. Following the order passed by the High Court, Dr. Rahul Verma alsomoved an application for being discharged from the prosecution and by anorder dated 7th April, 2001 the Magistrate accepted the application andclosed the case against him.The order -passed by the Magistrate is the subject matter of appeal in Criminal AppealNo.877 of 2002 and it is based on the order dated 4th February, 2000 passedby the High Court in the case of Indra Bhushan Singh.
Proceedings in this court and conclusion
16. Before us, learned Additional Solicitor General sought to contend
that it was not necessary to obtain the sanction of the Allahabad High
Court to prosecute Dr. Rahul Verma and Indra Bhushan Singh. He placed
reliance on Iqbal Singh Marwah v. Meenakshi Marwah.[2] In our opinion,this question will arise only if the complaint filed by Kandpal against Dr.Rahul Verma and Indra Bhushan Singh was an authorized complaint. If thecomplaint was filed without any authority conferred on Kandpal, it is nocomplaint at all, and that would make the requirement of a sanctioncompletely irrelevant.
17. Therefore, it is essential to first answer the primary question,
that is, whether or not the complaint filed by Kandpal against Dr. RahulVerma and Indra Bhushan Singh was at all authorized. Realizing this as the
primary issue, this Court passed an order on -
28th October, 2009 to the effect that the Allahabad High Court is required
to be impleaded as a party respondent “for an effective hearing of these
appeals, and to do complete justice between the parties.” Accordingly,
notice was issued to the Allahabad High Court.
18. In response to the notice issued by this Court, an affidavit dated
28th January, 2010 was filed on behalf of the Allahabad High Court. The
affidavit reads as follows:-
“I, Shamsher Chandra aged about 52 years son of Late Ram Sundar
Tripathi presently posted as Officer-On-Special Duty
(Litigation), High Court, Allahabad, the deponent herein, do
hereby solemnly affirm and state as under:

1. That, the deponent is at present posted as
Officer-On-Special Duty (Litigation), High
Court, Allahabad, and as such is fully
conversant with the facts and circumstances
of the instant case and is competent and duly
authorized to swear the instant affidavit.

2. That, it is stated that no authorization was
given by the High Court for filing of the
complaint dated 26.08.1991 before the Special
Judicial Magistrate, C.B.I., Lucknow, by the
Deputy Registrar (Administration) of the
Lucknow Bench of the High Court, Allahabad.
As such, no record in relation thereto is
available or existent.

3. That, a fact finding enquiry in the matter of
the alleged authorization to the then Deputy
Registrar (Administration) of the Lucknow
Bench of the High Court, Allahabad was
initiated by the Allahabad High Court and the
enquiry has now been concluded and it has
been reported that Sri H.D. Kandpal, the then
-

4. Deputy Registrar (Administration) of the
Lucknow Bench of the High Court, Allahabad;
who had retired from service on November
1992, was responsible for lodging the
complaint dated 26.08.1991 before the Special
Judicial Magistrate, C.B.I., Lucknow without
any sanction/approval of the High Court of
Judicature at Allahabad. A true copy of the
fact finding Enquiry Report dated 14.12.2009
and its supplementary report dated 22.12.2009
of the Enquiry Officer in the same enquiry
are being annexed herewith and is marked as
Annexure-1 (colly) to this affidavit.”

19. It is quite clear from the affidavit filed by the Allahabad HighCourt that Kandpal had filed the complaint against Dr.Rahul Verma and IndraBhushan Singh without any authority conferred on him by the High Court.This is now beyond question.
20. Since the complaint by Kandpal was filed without any authority, inour opinion, the Magistrate could not have taken cognizance of it orproceeded with the matter. He lacked the jurisdiction to do so since therewas no valid complaint before him.
21. In view of the factual position as stated on affidavit on behalf
of the Allahabad High Court, the other questions urged by the learned
Additional Solicitor General do not arise. They would certainly arise if
the complaint had been a valid complaint, which it was not.
-
22. Under these circumstances, in view of the categorical stand of theAllahabad High Court that no sanction or authorization was given to Kandpalto file a complaint against Dr. Rahul Verma or Indra Bhushan Singh, thereis no merit in these appeals and they are accordingly dismissed.
……………………………………J
(Ranjana Prakash Desai)